Is there fair justice?

July 22, 2010

By KAREN VELIE

He was convicted of felony manslaughter and drug possession, but he never spent a day in jail. In fact, he was permitted to leave the country to vacation in Europe while on unsupervised probation.

Rubin family members are upset that Alex Forster, the man convicted of killing Francheska Rubin in 2008, received no jail time and until last week was not required to conform to the probation requirements of drug testing and supervision while others charged with the same offense have been treated differently.

A few years ago, the San Luis Obispo County Probation Department moved away from its old method of classifying probationers through personal interviews and began using an assessment tool. The “tool” takes into account aspects of a person life, such as their age, hobbies, social personality, marriage and family, and social patterns.

Those, who score low, are considered low-risk offenders and as such are not required to be drug tested or report to a probation officer, said Gary Joralemon, San Luis Obispo Probation Department’s adult division manager who said assessment instrument testing has proven vary reliable in determining who will reoffend.

However, critics of the new system contend that because they are not supervising low-risk offenders, the chances of them being caught committing another crime or using drugs are greatly diminished.

And if home visits, urine tests and limiting a person’s travel are not ordered, critics say even a low-risk offender can get into trouble again.

Sympathetic probation officials, moved by the anguish expressed by one victim’s family, are changing the way they classify those convicted of killing another person.

“I want them to enforce the conditions of his probation, watch him and test him,” widower Ben Rubin said, horrified that the young man guilty of his wife’s death didn’t get a stiffer sentence. “We were married for 40 years. My heart is broken.”

On June 13, 2008, Alex Forster was driving west on Price Canyon Road on his way home from a party he had attended in Santa Barbara. In his car, authorities later found marijuana laced chocolate bars, a bag of pot and three glass pipes.

Witnesses said Forster, 18, was speeding, following too closely and weaving in and out of traffic.

Forster then swerved about two feet across the double yellow line side, sideswiping a 2001 KIA driven by Maria Garcia. She lost control and the KIA then struck a Tundra driven by Paul Lavelle.

Forester, driving a 2007 Audi RS4 sedan, then plowed head on into 58-year-old Francheska Rubin’s 2003 Toyota Avalon, trapping the Russian émigré in the crushed vehicle.

Emergency medical personnel treated Rubin, who suffered a fractured lower leg, a dislocated forearm, a concussion and chest and abdomen contusions. It took CalFire between 15 and 20 minutes to free Rubin who was becoming “less and less responsive,” according to the accident report.

Rubin died at 6:10 p.m., approximately one hour after the accident occurred, as the result of massive internal injuries, the report said.

A misdemeanor vehicular manslaughter charge can result in a year in jail. A felony based on gross negligence can mean a sentence of up to six years in jail as long as no drugs or alcohol was involved.

Nevertheless, Forster, who pleaded guilty to felony manslaughter and drug possession, would spend just a few hours in jail in exchange for 400 hours of community service.

In comparison, in another case of vehicular manslaughter involving intoxication, 20-year-old Chad Tolley, the son of San Luis Obispo Police Lt. Steve Tolley, pleaded guilty to vehicular manslaughter in the 2006 death of a 73-year-old church pianist. He was sentenced to six years in state prison.

Currently, Kaylee Ann Weisenberg, 22, remains in San Luis Obispo County jail with bail set at $250,000 after being charged with vehicular manslaughter in the death of California Highway Patrol officer Brett Oswald in Paso Robles on June 22.

Weisenberg was allegedly speeding and driving without a license when she went around a corner, lost control and hit the CHP officer.

She was not intoxicated at the time, according to drug tests administered by the CHP.

In Forster’s case, with evidence of marijuana in his bloodstream, following too closely and repeatedly weaving back and forth over a double yellow line, he pleaded guilty to gross negligence in the car accident that killed Rubin.

San Luis Obispo Superior Court Judge Dodie A. Harman sentenced Forster to community service and three years of probation. Following the sentencing, his family voiced its concerns about their son missing a planned 2009 European family vacation.

Judge Harmon said Forster would not be vacationing in Europe and ordered him to start his community service and probation.

However, when Ben Rubin called probation a few months ago to check on Forster’s status, he was informed that the young man was classified as a low-risk offender and had not been required to drug test, check in with probation or remain in the area.

And that San Luis Obispo Superior Court Judge Barry LaBarbera had agreed to allow Forster to travel with his parents to Europe for a 2010 vacation.

Because of his low classification, the Probation Department allowed Forster to move to Los Angeles to attend a private college and recommended to the courts that he be allowed to travel to Europe for a summer vacation with his parents.

Judge LaBarbera agreed to the trip despite the objections of Rubin’s husband and children, who questioned if Forster’s privileged background played into his lack of supervision.

Forster’s father Michael Forster owns Power Save Energy Co. in San Luis Obispo. The Audi RS4 sedan Forster was driving at the time of the accident had a value of nearly $80,000.

“The only thing I’m asking is to treat him as any other prisoner,” Ben Rubin, a Russian immigrant, told the court in broken English. “He wasn’t treated as any other because of the money and the connections.

“They came to my house an hour and a half after the accident and said he is a nice clean kid. What nice clean kid? He was on drugs,” Ben Rubin added.

On June 2, Judge LaBarbera rejected Ben Rubin’s request, noting that it was not a sex crime and suggested Rubin seek counseling and move on with his life.

“The fact that someone made a mistake and everything else you’re talking about, the bottom line is, it doesn’t matter. Your loved one is gone,” LaBarbera said in court. “He (Forster) is a human being and we have to treat him with decency and respect.”

Nevertheless, probation officials decided to override the assessment test and reclassify Forester as a high-risk offender. In addition, future probationers convicted of felony manslaughter will be classified high-risk, regardless of how they perform on the assessment test.

“We are treating him differently now because we owe it to the victim,” Joralemon said. “It is a horrible tragedy.”

Forster is back from his travel abroad and on Monday was tested for drugs. Joralemon said they plan to begin random visits to his home and are considering whether or not they will permit him to leave the county to attend college in the fall.

“I want him supervised properly under the conditions of his probation,” Ben Rubin said. “If you are on probation for killing someone, what kind of vacation should you have.”


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PaulJones

How is Mr. Summers doing with retrieving the 911 tapes from the call placed to the APD the night that he was violently assaulted in his own home by off duty SLOPD officer Cramer?


Cindy

“Currently, Kaylee Ann Weisenberg, 22, remains in San Luis Obispo County jail with bail set at $250,000 after being charged with vehicular manslaughter in the death of California Highway Patrol officer Brett Oswald in Paso Robles on June 22.”


I have to say that I followed this story as it unfolded in the TT and the blogs that followed. There was a CRY for this young woman’s blood where this “accident” was concerned. To date I’m not aware that she was even speeding and we now know that drugs and/or alcohol was not involved. The speed limit on that road is 55MPH. People were arguing that it was her responsibility to control her vehicle and if she couldn’t then she was speeding. I have to ask what 22 year old who is traveling at the recommended speed limit on a clear day with dry roads who approaches a severe blind curve (with no warning signs) and upon negotiating the curve encounters two vehicles illegally parked, cones in the road and a pedestrian (in this case the CHP officer) guilty of gross negligence and “FELONY” manslaughter?

In this incident the officer had been called out to the location to remove an abandoned vehicle that was already considered an accident waiting to happen. I in no way want to fault the officer but let’s face it, he was standing around a blind (unmarked) curve on a narrow winding road and did not place any cones that would warn approaching south bound traffic of the distraction waiting around that curve.


Admittedly, this young woman was driving on a suspended license, it wasn’t suspended for speed ing , reckless driving or DUI, it was suspended because she had a rolling stop sign violation and a “fix it” ticket. She couldn’t pay the fines and it snowballed. It has nothing to do with this accident. She is 22 and a single mother with a young child. Has she been treated fairly with a bail set at $250,000, ? I think not.


If the pedestrian who succumbed to this “accident” had been someone other than the lovable CHP officer Mr. Oswald (or any other LEO), would Ms Weisenberg be sitting in jail with a $250K bail (impossible bail for her family to meet as they couldn’t meet the original 50K bail), a 2 year old baby needing and missing her mother and facing 10 years in prison? I think not.


bbinpr

He was visible to the traffic affected by the vehicles on the other side of said blind curve. She had crossed over the double yellow lines into oncoming lane to hit him. Who knows, had the vehicles been moving instead of parked, we may have been reading about a tragic head-on collision accident instead. A suspended license is a suspended license regardless of why. And as I know first-hand, there are options to repay fines such as payment plans, community service hours, or even serving weekends in jail. or a combination of those options. As with a “fix-it” ticket, after I made the correction and got it signed off, I sent the court the ticket and $10.00. Unfortunately for her, she has a prior history of failing to appear to court, so that could be why she wasn’t released on OR. It appers that some of her past choices are affecting her current situation. I imagine she is scared and probably relives that moment in her mind and my heart goes out to her and her baby. The continuances to secure legal representation for a not-guilty plea added to her time away from her baby. Her best option may be a plea bargain for a reduced sentence.


MarkJames

“plea bargain” for a reduced sentence? Unfortunately Ms Weisenberg isn’t Alex Forster. Ms W was charged with “gross negligence” and “felony manslaughter”. Unlike Forster, she wasn’t passing cars and intentionally weaving in and out of the opposite lane and she wasn’t high as a kite on drugs either, nor was she driving an 80K vehicle or from a well to do family who felt that a trip abroad was more important than her reporting to her probation officer. The DA isn’t looking to give Ms a fair plea deal, he is looking to throw the book at her, as seen by the ridiculous bail the judge saddled her with. She has no choice but to opt for a jury trial. It appears that a jury is her only means of seeking justice.


Robert1

SLO county probation dept is a joke,they allowed a convicted thief to waive $20,000 in restitution after serving about 1 year of a 3 year probation.She stole the money from a nonprofit for children,the amount stolen was closer to $40,000 but only $20,000 could be proven beyond a doubt.

Never did they notify the victims before making the decision.I had previously called the probation officer, then the supervisor several times and neither returned my calls regarding no payments being made as ordered by the court and a condition of probation.Judge Trice made it very clear as he wanted her to repay and if she did not he would order her to finish out her time (1 yr) in county jail.

THE PROBATION DEPT SUCKS.


R.Hodin

The whole criminal justice system sucks. Tit for tat.


bobfromsanluis

I’m curious how comparable the probation is for the lady who very unfortunately killed the little girl on South Street and the probation for this apparently privileged young man who caused the death of someone because he was in a hurry, was operating a motor vehicle under the influence of drugs, and did he show any remorse when he was in court? It would seem to me that no matter what the reason or cause, if you are operating a motor vehicle and you cause the death of an individual, unless that person actually “jumps” right into the path of your vehicle, you should be classified as a “high risk offender”. The question at the start of this article, “Is there fair justice?” is unfortunately answered “Not always, depending on how much money you have”. A sad day in America when the rich receive more, or less justice than everyone else.


zaphod

corporations = people, money = speech, slaves = 5/8ths human! just ask the Supreme Court.


Lewy

I believe the actual number was 3/5.


Use_it_or_Lose_it

-Well now wait it minute. LaBarbara certainly is due his criticism. What a crass thing to have said, and this coming from the Former District Attorney of San Luis Obispo.


But, the real issue is the Probation Department that changed the way it determines who it will supervise and who it will not. When they do not supervise, no kidding, you are really not on probation.


What victims will they be responsive to and who will they not respond to? Mr. Joralemon seems to be at the head of this way of deciding. The new instrument, like any instrument was not designed to be used without the concurrent supplement of probation pre-sentencing interviews, feedback from the victim which they are required by law to seek and consider strongly, the police report, and any other source of information the comes their way.


The probation department did have Judge Harmon’s instructions and ignored them.


Why? Was it because of poor, some say business as usual, work on the part of probation, or was that because they decided in their great wisdom that they know better than the judge? Or are they just incompetent? Or does someone have some connection with the perpetrator’s family and collude with the perpetrator as probation is known to do?


It is very sad and reflects extremely poorly on the probation department. Of further sadness is it gives a very big black eye to all the probation officers who have integrity.


TacomaRose

and to you Mr. LaBarbara ….. May you reap the injustice you have sown !!!


TacomaRose

No Peace … No Justice !!!


Saveslocounty

…the bottom line is, it doesn’t matter. Your loved one is gone” LaBarbera said in court. What a classless and heartless thing to say to a grieving family.


mambiepambie

No justice will be served until culpability is recognized. Forster is clearly in the wrong…his father more so. And the system? Well, obviously LaBarbera’s back has been washed several times and I hope they enjoyed themselves while the victims grieved. This is a pathetic story too close to home.


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